More Money For Politics, But Not For Victims?

Toronto Personal Injury Lawyer Albert Conforzi: In the past year, there have been several important decisions from the Ontario Court of Appeal dealing with the issue of catastrophic impairments that arise from automobile accidents.

In both the Kuszniers and Pastore decisions, the highest court in the province declined to follow the interpretations urged by insurance companies. If they had been accepted, those interpretations would have narrowed who could be considered "catastrophically impaired." This would have significantly restricted a victim's access to benefits.

This latest attempt by the insurance companies to limit a victim's benefits is disturbing, but not surprising. There are a number of factors that already hinder a catastropohically impaired victim's access to care. They include: 1) a convoluted definition system which mandates using an American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition), which is hopelessly out of date, and 2) a lack of therapies that used to be funded through OHIP, but are no longer available for car accident victims in most circumstances.

I suppose it isn't enough that some statistics indicate that catastrophic impairment cases amount to only 1% of all accidents. No, insurers are definitely not happy that victims who are catastrophically impaired might actually get benefits. So when the courts are consistently telling them that their approach is wrong in law, there is only one thing to do - change the law to align it with their parsimonious viewpoint.

I noted with interest a recent piece from Alan Shanoff. It relates to campaign contributions made to leadership candidates in the Ontario Liberal Leadership campaign. The Insurance Bureau of Canada (IBC) has taken it upon themselves to make a campaign contribution to a number of front-running candidates in the race. As Shanoff states:

It's puzzling why every aspect of the auto insurance industry is up for review save for insurance industry practices. Perhaps the next premier of Ontario will remedy this omission. It would sure generate a lot of votes. But I wouldn't bet on an inquiry, not with reports of $60,000 contributions by the Insurance Bureau of Canada to the leading candidates in the Ontario Liberal leadership race.

Why would an insurance lobby group want to position themselves with the leading contenders through campaign contributions? There is one answer that is obvious to me: insurers will be looking for further restrictions in the definition of catastrophic impairment in the 5-year review of the insurance regulations. This review is mandated to commence in 2013. What the courts won't allow them to get away with through the front door, they will try to get through the back door with amendments to the regulation.

I guess the IBC is betting that some well-placed contributions at this stage will gain them access to the ears of legislators in the future. Only time will tell whether it will be money well spent. Good thing that insurers are apparently awash with profits from the last legislative amendments that came into effect in 2010 following the 2008 five-year review. They apparently have plenty of money to throw around now.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Something Good For Claimants - For Now

Toronto Personal Injury Lawyer Albert Conforzi: On September 27, the Ontario Court of Appeal issued a long awaited ruling dealing with the case of Pastore v. Aviva Insurance Company.

The case dealt with the interpretation of the definition of catastrophic impairment in the Statutory Accident Benefits Schedule (SABS). A catastrophic impairment designation opens up an extended range of benefits for people injured in an accident. These benefits include medical, rehabilitation, attendant care, and housekeeping benefits.

Unless you work in the legal or insurance industry, or know someone who has been involved in a catastrophic injury case, you may be surprised to learn that being declared "catastrophically impaired" does not result in an automatic payment of ANY sort. The only thing that it does is open the door to qualify for further benefits beyond the non-catastrophic limits.

In Mrs. Pastore's case, she had suffered an ankle fracture when she was struck by a car. The injury later resulted in knee problems due to altered gait, and led to disabling chronic pain. In turn, the chronic pain resulted in psychological impairments. She was declared by physicians to have suffered a marked catastrophic impairment due to her mental and behavioural disorder in the realm of the activities of her daily life.

The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four?

The insurer Aviva disputed the designation at every level possible, resulting in three separate decisions before the Court of Appeal. The thrust of their argument was that the AMA guides identify 4 areas of behavioural disorders. Mrs. Pastore was found to have a marked impairment in one area only. The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four? The insurance company argued that a finding of marked impairment in only 1 area was simply not enough.

In its unanimous decision, The Court of Appeal found that the legislation supported Mrs. Pastore's version, that "a marked mental and behavioral impairment" does indeed mean that one is enough.

Now that the insurance industry has lost this important case, I fully expect the insurers to lobby the government for a change to the SABS to reflect their own interpretation. Historically, the government has caved to insurer demands. Though it is difficult to understand why the government would enter the debate when the courts have commented, in my opinion the insurance industry lobby is very strong and very intent on eliminating benefits payable to claimants to the greatest extent possible.

We shall see whether history will repeat itself.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.